If a Statute Prescribes a Method or Modality for Exercise of Power, by Necessary Implication, the Other Methods of Performance are Not Acceptable: SC
It is well recognized principle of law that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed.[1] The Hon’ble Supreme Court has once again affirmed the same. The principle and the verdict of the Apex Court[2] can be understood better in the light of the fact of the matter.
In view of the failure of a person, accused of dishonor of cheque and being prosecuted under section 138 of the Negotiable Instruments Act, 1881 (“1881 Act“), to deposit 20% of the cheque amount as interim compensation in terms of Section 143(A) of the 1881 Act as per the orders passed by the Senior Civil Judge & JMFC, Nagamangala, the application preferred by the accused under Section 145(2) of the 1881 Act seeking permission to cross-examine the opposite party was found non-maintainable. The accused was not allowed to cross-examine the witness and was ultimately found guilty under section 138 of 1881 Act.
In subsequent appeals, the order of conviction and sentence passed by the Trial Court was confirmed with the remarks that accused did not comply with the order of this Court to deposit 20% of cheque amount, hence, it disclosed that the accused was reluctant in complying with the order of the Court and thus the Magistrate had rightly refused the prayer made by accused seeking permission to cross-examine P.W.1 and proceeded to pass impugned order. On the challenge, the Hon’ble High Court also dismissed the Criminal Revision Petition filed by the accused affirming the view taken by the courts below.
On appeal before the Hon’ble Supreme Court, the question for consideration was precisely whether it is within the competence of the court to deprive an accused of his right to cross-examine a witness if the accused has failed to deposit the interim compensation. In other words, whether the court/authority deviate from the method in which that power has to be exercised by the court as expressly laid down in the statute? The Court examined the provision under section 143(A) of the 1881 Act which confers power to direct interim compensation. As per sub-section (5) of section 143(A), the interim compensation payable under the section may be recovered as if it were a fine under section 421 of the Code of Criminal Procedure, 1973. Thus, the remedy for failure to pay interim compensation as directed by the Court and the method to realize the same is provided for in the statute.
In this background, the Court applied the law settled by the Privy Council in Nazir Ahmad vs. King Emperor [AIR 1936 Privy Council 253 (2)] and relied upon by the Supreme Court in its decision in State of Uttar Pradesh vs. Singhara Singh and others [AIR 1964 SC 358] that “where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden”. The law was reiterated in J.N. Ganatra vs. Morvi Municipality [(1996) 9 SCC 495] and Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala [(2002) 1 SCC 633] where it was held that “It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.” While applying the law to the facts of the case, the Court held that Section 143(A) nowhere contemplates that an accused who had failed to deposit interim compensation could be imposed with any other consequence including foreclosing the right to cross-examine the witnesses examined on behalf of the complainant. As per law, the interim compensation can only be recovered as if it were a fine under section 421 of the Code of Criminal Procedure, 1973. Therefore, any exercise of power by the Courts otherwise, goes beyond the permissible exercise of power given under the section. The Court accordingly ruled that the order of the lower court suffered from an inherent infirmity and illegality and was liable to be set aside.
[1] Taylor v. Taylor [(1875) 1 Ch D 426
[2] Noor Mohammed v. Khurram Pasha [Criminal Appeal No. 2872 of 2022]
